MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 November 2000
	DOCKET NUMBER:   AR2000040462

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD) and that his reentry eligibility (RE) code be changed to one that allows his reenlistment.

APPLICANT STATES:  In effect, that he served in the Army during the gulf war and when he got out in the 1992 he was still in his early twenties.  His separation document indicated that the reason for his discharge indicated some kind of drug abuse which is not supported anywhere in his military record.  He claims that when he received his GD he did not realize how negatively it would impact his working career.  He stated that he was in the Army for three years and always did a good job.  He indicates that he needs help because he is attempting to upgrade his discharge and change his RE code so that he can be eligible to reenlist and to be eligible for Federal employment.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 29 November 1988, he enlisted in the Regular Army for four years at the age of twenty-one.  He successfully completed basic training at Fort Sill, Oklahoma and advanced individual training (AIT) at Fort Bliss. Texas.  Upon completion of AIT he was awarded military occupational specialty (MOS) 24M (Vulcan Systems Mechanic) and he remained at Fort Bliss for his first permanent duty station.

The applicant’s record reveals that during his tenure on active duty he earned the Army Achievement Medal Army, the Army Service Ribbon, and the National Defense Service Medal.  There are no other recorded acts of valor, significant achievement, or service warranting special recognition contained in the applicant’s service record.  

The record does contain an extensive disciplinary history which includes the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on four separate occasions.  

On 6 March 1990, the applicant accepted NJP for dereliction of duty.  His punishment for this offense included a reduction to Private/E-2 (PV2), which was suspended for 60 days.  The Department of the Army (DA) Form 2627 (Record of Proceedings Under Article 15, UCMJ), prepared in connection with the imposition of this NJP, indicated that the applicant, after being afforded the opportunity to consult counsel, elected not to demand trial by court-martial.  

The suspended reduction portion of this punishment was vacated on 6 April 1990 and the applicant was reduced to PV2 based on a misconduct incident of failing to go to his prescribed place of duty.  

On 30 July 1990, the applicant accepted NJP for operating a vehicle while drunk and for wrongfully possessing one bag of marijuana.  His punishment for these offenses included a reduction to PV2 and the DA 2627 prepared for this action reveals that the applicant again elected not to demand trial by court-martial after being afforded the opportunity to consult counsel. 

On 30 April 1991, the applicant accepted NJP for assaulting another soldier.  His punishment included a reduction to PV2.  The Record of Proceedings prepared for this NJP shows that he again was afforded the opportunity to consult counsel and again elected not to demand trial by court-martial.

On 17 May 1991, the applicant accepted NJP for two specifications of failing to go to his prescribed place of duty, one specification of disobeying a lawful order, and three specifications of breaking restriction.  His punishment for these offenses included a reduction to private/E-1.  The DA Form 2627 prepared for this action indicates that applicant again declined to demand trial by 
court-martial after being afforded the opportunity to consult counsel. 

On 30 May 1990, his unit commander notified the applicant that separation action on him was being initiated, under the provisions of chapter 14 of Army Regulation 635-200, by reason of a pattern of misconduct.  The commander cited the continued pattern of misconduct displayed by the applicant since March 1990 as the basis for taking the separation action and he indicated that he was recommending that he applicant receive a GD.

On 7 June 1991, the applicant consulted legal counsel and after being advised of the basis for the contemplated separation action and its effects, he completed his election of rights and submitted a statement in his own behalf.  

On 18 July 1991, the separation authority approved the applicant’s separation and directed that he receive a GD and an RE Code of 3.  Accordingly, on 
8 August 1991, the applicant was discharged after completing 2 years, 8 months, and 10 days of his four year enlistment.  

The evidence of record includes a Department of Defense (DD) Form 214 issued to and authenticated by the applicant with his signature on the date of his discharge.  This document indicates that the applicant was separated, under the provisions of paragraph 14-12c, Army Regulation 635-200, and that the narrative reason of his separation was misconduct, abuse of illegal drugs.  It also shows that the applicant was assigned an RE code of 3c and that his separation code was JKK.

On 24 March 2000, the Army Discharge Review Board (ADRB) provided the applicant relief in the form of changing the narrative reason for his separation to “misconduct” and the authority for his separation to “Army Regulation 635-200, Paragraph 14-12b”, which codifies a separation by reason of a pattern of misconduct.  

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  

Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Persons discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200 receive an RE code of 3.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKA was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of AR 635-200, Chapter 14 for a pattern of misconduct.  Additionally, 
Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 
(Separation Documents) establishes RE Code 3 as the proper reentry code to assign to soldiers separated for this reason.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although members separated under these provisions may be awarded an HD or GD, the issuance of a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that his discharge was too harsh and that he overall record of service was good.  However, the evidence of record confirms that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that the character of the applicant’s discharge is commensurate with his overall record of military service.  

2.  The Board took special note of the fact that the applicant was awarded a 
GD in spite of the fact that the regulation indicates that an UOTHC discharge is normally appropriate for members separating under the provisions of chapter 14 of Army Regulation 635-200.  

3.  Further, the Board finds, in view of the circumstances in this case, that the assigned RE code was and still is appropriate.  Thus, there is no basis for the removal or changing of the assigned RE code from the applicant's record. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___slp___  __mw___  ___tlp___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040462	
SUFFIX		
RECON		
DATE BOARDED	2000/11/14	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1991/08/08	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Pattern of Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.